The Power of Perspectives

Bill C-23: This strip of my country is your country

What do you do with a bill to implement an agreement reached by governments in two countries that have each been replaced by administrations with very different priorities and ideologies?

When it comes to Bill C-23, which would implement the Agreement on Land, Rail, Marine and Air Transport Preclearance reached between Canada under Stephen Harper’s Conservatives and the U.S. under Barack Obama’s Democrats, a number of national CBA Sections suggest you step back – waaaaay back – and think hard about what the legislation would mean once enacted.

The differences between the administrations that reached the agreement, signed in March 2015, and the current governments in both countries, are so significant that they “warrant a re-examination of the scope and contents of the agreement and this draft legislation that flows from it,” say the Immigration Law, Criminal Justice and Commodity Tax Sections in their submission.

The uncertain climate that currently attends the question of crossing the border has heightened those Sections’ concerns about the legislation, which even before the 2016 U.S. election raised questions about sovereignty.

While it is still early in the new U.S. administration’s term, there have already been several developments that “give rise to serious concerns about how the significantly expanded powers of U.S. officers operating on Canadian soil could be exercised. We therefore urge the government to engage in full consultations, and an extensive review, before enacting this legislation, which is so highly intrusive on personal liberties and rights.”

Despite a shopping list of reasons why the CBA cannot support the bill in its current form, the Sections point out that Canada is committed to promoting the free flow of goods and people across the world’s longest undefended border. For the benefit of the two countries’ mutual economic interests, its “inadequacies can be remedied to deliver the desired economic and social benefits without sacrificing essential rights and freedoms or extending criminal liability unreasonably. We recommend significant changes to the underlying policy objectives and the language of the bill.”

For example, sections 18 and 30, which limit a traveller’s right to withdraw from preclearance, even if there is no allegation of wrongdoing, is a “substantial” change from the current legislation.

A traveller who wants to withdraw from a preclearance area because of intrusive or overly lengthy questioning, the Sections say, should have the right to do so. “Any law conferring discretion to detain without express or implied criteria governing its exercise is an arbitrary law,” the submission says.

As the bill is drafted, a traveller’s only remedy when asked “unacceptable” questions is to refuse to answer – which opens the door to an unfortunate Catch-22.

“At that point, they would face arrest and detention for not complying with section 30 (answering truthfully any question asked by a preclearance officer) or section 38 (obstructing or resisting a preclearance officer), including the use of physical force,” and possible charges under the Act. “They would have no recourse under Canadian law, or possibly under U.S. law, to challenge a preclearance officer who has exceeded powers granted by Canadian law. Preclearance officers would be virtually unaccountable, as the bill exempts their decisions from judicial review in Canada (s. 40), makes them exempt from civil liability (s. 39) and permits the U.S. to bar their extradition back to Canada (s.42).”

Allowing U.S. preclearance officers to conduct strip searches on Canadian soil without the presence of a Canadian border services officer is also a “dramatic” and “unacceptable” departure from current legislation, the Sections say. Being untrained in Canadian law the U.S. officers are liable to breach it, and yet, again, remain virtually unaccountable for having done so.

Another issue addressed in the submission is the lack of Canadian policy governing searches that involve information protected by solicitor-client privilege. The Sections recommend that the Public Safety Minister establish a working group “to develop a fair and balanced policy for searches at the Canadian border and in preclearance areas that preserves solicitor-client privilege over devices and documents.”

Other problematic areas:

The draft legislation does not require U.S. Customs to return goods seized in preclearance, even if it has been determined that no contravention occurred

The bill does not address seizure or cancellation of NEXUS cards in the preclearance area

The bill would allow U.S. customs officers to refuse Canadian permanent residents entry into Canada

The bill gives Canadian preclearance officers power to turn away those seeking to enter Canada to seek refugee protection

The Sections hope to appear before the Public Safety and National Security Committee in support of this submission in April.

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